Surrogacy… April 10, 2012

Breda O’Brien had an article in the Irish Times a while back about surrogate mothers.

This can seem a particularly attractive option, where the couple’s own genetic material is being used. The child will grow up and be part of a biologically related network of relatives.

We see in media reports delighted parents talking in emotional terms about the precious gift of life which a generous woman has given them.
Then there are the heart-rending stories of “stateless” children, whose genetic parents have no rights. For what it’s worth, I would be in favour of regularising the situation of these children as swiftly as possible. They are as precious as any other children and deserve their basic rights to an identity, a family and a nationality.

But…

However, I would then ban surrogacy, as they have done in other European states such as Austria, Germany and France. The European Court of Human Rights recently upheld the Austrian ban on surrogacy. The Austrian argument is that “splitting” motherhood between a biological and gestational mother is a very bad idea for children, and even worse when another party or two is involved, as in the case of donor eggs and sperm.

It’s interesting to read some of her reasoning as to why she’d ban it.

Rebecca Haimowitz and Vaishali Sinha made a documentary called Made in India about two middle-class Americans contracting a woman, Aasyia, in Mumbai, to carry their biological child. Aasyia is shown wearing a hijab in her one-room home that she shares with her husband and three beautiful children. The hijab is not for religious reasons, but to prevent her being identified by her neighbours. When she first heard about surrogacy, she laughed, because she did not know pregnancy was possible without “a relationship with a man”.

Then, this quick-witted, resourceful woman, who admits she cannot read or write, says while her sons can fend for themselves, the $2,000 she could earn through surrogacy will help her provide for her daughter.

But it is worth asking: can an illiterate woman who didn’t even know surrogacy was possible and is desperate to help her children truly give informed consent?

These are good questions. But interestingly, it’s not the exploitation issue that trumps it for O’Brien. She writes…

What if the woman is not exploited, but properly remunerated? After all, $2,000 for 24 hours a day for nine months, and then birth, followed by empty arms, amounts to slave labour rates. I’m not sure how you remunerate a woman for having a child grow under her heart for nine months, all the time refusing to allow herself to get attached to her or him. But if you make a payment like €25,000, at least you are closer to the truth of acknowledging this is a commercial transaction.

I’d be very dubious about surrogacy in potentially or actually exploitative contexts (and more here from Feminist Ire on the issue ). But that’s not the entirety of it – whatever about the ‘grow under her heart’ line Because it’s not simply about being a commercial transaction, not simply about ‘exploitation’ potential or actual.

There’s a fascinating anecdote in Liza Mundy’s Everything Conceivable, one of the most interesting books I read in the last year, about a woman named Ann Nelson in Michigan who was a graduate of Michigan State where she ‘took classes in bioethics and wrote a thesis on reproduction that covered everything from abortion to breast-feeding. Her research included surrogacy…she was intrigued rather than appalled. “I decided then that I wanted to do it. Because I could. That’s not something most surrogates will telly. most surrogates will tell you they wanted to help somebody. I wanted to do it because I knew I could do it.”

And Mundy continues:

For Ann Nelson, who is also an environmental activist and a counsellor of pregnant teens, surrogacy was part of what she calls “a grassroots thing. I thought, ‘I could help these poor people”.

She eventually became surrogate on a number of occasions for various gay couples. The book considers in detail her surrogacy for a gay couple, Doug and Eric, which raises the central point:

‘Even now Doug and Eric cannot grasp surrogacy and why women do it. It’s easy, they think, to understand why somebody, anybody, would want children. What is harder to get one’s mind around is why someone would want to have children for someone else. “It’s really hard to fully appreciate,” says Doug. “We are so incredibly grateful. And yet we really don’t understand it.”

Nelson argues that ‘the reproductive rights umbrella should include gay men, and her own reproductive rights should include the right to help gay men [and presumably all others as well – wbs] build the families they long for.

Perhaps that example, having a gay couple involved in the process, is a bit outré for O’Brien. So what then of the far from infrequent examples where siblings or other relatives have been surrogates? In that instance the charge of exploitation begins to seem very thin indeed.

The problem with the O’Brien approach is that rather than coming out and saying clearly that she is against surrogacy, period and explaining why, instead she brings in all manner of extraneous issues. Few would stand over any exploitative practices, such as arguably those we see in India and other states. But the point is that it is entirely possible to design programmes that are not exploitative, or where there is a minimum of such exploitation. And to point to the worst excesses is to ignore more central aspects of the issue. There may indeed be good reasons why surrogacy is far from optimal and there may not, although it may also be moot given the fact that in the United States it is now far from unusual, but these are not they and as part of an addition to a general discourse on such matters they evade rather than focus upon what it means now and implies as regards the approaches towards such matters in this state.

There’s more though. In 2005 the Commission on Assisted Human Reproduction issued a report. The Commission was an attempt to find a way through the thicket of issues surrounding AHR. And as the foreword to the Report notes:

The Commission on Assisted Human Reproduction was set up to report on possible approaches to the
regulation of all aspects of assisted human reproduction and the social, ethical and legal factors to be taken into
account in determining public policy, in this area. The phrase assisted human reproduction was
understood by the Commission to refer to any procedure that involves the handling of gametes or embryos.
Where feasible the Commission has avoided the excessive use of medical and scientific language in the report.

Surrogacy arrangements can take place using IVF or AI techniques, but may also be carried out without any
medical intervention. Where surrogacy is carried out privately and without medical intervention, the
arrangement would be impossible to regulate.
The arguments considered during the Commission’s discussions include the following:ARGUMENTS IN FAVOUR OF SURROGACY
• Given the shortage of children available for adoption, surrogacy might be the only option for some
people to have a family, especially in cases of non-traditional families where adoption poses particular
problems.
• The right to procreate should extend to surrogacy arrangements made by fully autonomous adults,
once no harm to children is expected as a result.
• Surrogacy may be understood as an expression of altruism.
• The use of the human body for surrogacy is ethically indistinguishable from other accepted practices
that separate genetic, gestational and social parenting, such as donor insemination, adoption and wet
nursing. It is also indistinguishable from other practices whereby the human body may be seen as
being utilised for profit, such as professional athletics and modelling.
29The Commission recommends that in general, donors should not be permitted to attach
conditions to donation, except in situations of intra-familial donation or the use of
donated gametes/embryos for research.
• Although some people may find the practice of surrogacy inherently objectionable, the State should
not enforce one set of values against those who do not share those values and, in the absence of
demonstrable harm to children or others involved in surrogacy, should remain neutral.
• Although much research needs to be done on the follow-up of children born through surrogacy, the
most recent research carried out (on very young children) indicates that commissioning parents are
more attentive than average to children and the well-being indicators for the children are very positive
at this stage.ARGUMENTS AGAINST SURROGACY
• Surrogacy represents the incursion of market values into gestation and traditional values of
reproduction.
• Commercial surrogacy involves the use of contractual models whereby those who agree to become
surrogate mothers are vulnerable to exploitation. Respect and consideration for women demands that
this potential for exploitation be prohibited by the prevention of surrogacy contracts.
• The commercialisation of gestation places a monetary value on children which conflicts with their
fundamental rights to be loved unconditionally as individuals and not as commodities.
• Surrogacy is unnatural because it separates the genetic, gestational and social roles of motherhood.
Society should not interfere with the laws of nature by adjusting the natural or standard physiology of
reproduction.
• Respect for human beings demands that no person should ever be used as a means to an end. The
involvement of a third party as gestator for the child treats her as an object by which the achievement
of the birth of a child can be attained. The commissioning party hires her in order to satisfy their own
desires, rather than to give life to a child.
• A woman cannot possibly know before becoming pregnant and carrying the child for the duration of
the pregnancy how she will feel on having to relinquish that child at birth. Her perceptions about
attachment to the child may be very different at the time of her agreement to become a surrogate
mother from when she gives birth and it is unreasonable to expect her to contract out of her right to
retain custody of the child.
The Commission considered how best to address the ethical and legal concerns in relation to surrogacy and
whether it was preferable to regulate or prohibit surrogacy.
The majority of members were in favour of regulating surrogacy, and all members were strongly of the view
that commercialisation of the practice should not be permitted by the regulatory authority.
One member was strongly opposed to regulation and took the view that surrogacy ought to be prohibited. Such
opposition was based on the opinion that surrogacy inherently entails risks of exploitation of women and
commodification of children. On this view, public policy dictates taking a strong stance against such
arrangements and should prohibit commercial agencies from seeking to make a profit from surrogacy. It was
also argued that the recognition by the State of the legitimacy of surrogacy, even in tightly regulated
circumstances, would give rise to a growth of such arrangements on a commercialised basis.

It would have been useful for O’Brien to reference the Commission, which is – of course – even though it has not been acted upon in subsequent years, is the closest we have come to a democratically legitimised effort to engage with this area. It might have been particularly useful for her to note that the outcome of the deliberations of the Commission was that surrogacy should be legal in the Republic, albeit it should not be commodified. There was only one dissenting member.

But to not do so suggests she is unwilling to engage with the issue in a manner which does it full justice. There’s no one, I imagine, who thinks that these issues are closed to discussion. Even if the processes are much more straightforward than is often pretended (surrogacy after all being merely an extension of already tried and tested IVF techniques) for those caught up in them they present genuine challenges. But pointing to extremes as if they represent the totality is untenable.

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What is most amazing about the whole area of assisted human reproduction is that precisely because politicians are afraid to touch it, Ireland is the equivalent of the wild west because nothing is regulated and our laws have no comment to make on issues like surrogacy, stem cell research, cloning etc.Whatever your views on these issues, surely everyone should agree we should have some form of regulation.

A very interesting case of Roche V Roche shows how the courts are grappling with these issues against a background of no regulation. PErhaps the most interesting part of that judegement is that the courts ruled the rights protecting the unborn in our constitution did not extend to unborn embryos outside of the womb. This shows how absurd our whole societal reluctance to address this issue really is.